Report Title:

Rural district lands

Description:

Provides a one-time process by which agricultural lands already subdivided and developed for non-agricultural uses may be reclassified to the rural land use district. Provides policy guidance for county land use and planning policies, standards, and development practices that are specifically designed to promote rural land use and character. (HB2787 HD1)

 

 

 

 

HOUSE OF REPRESENTATIVES

H.B. NO.

2787

TWENTY-SECOND LEGISLATURE, 2004

H.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO LAND USE.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that the state rural land use district offers an important tool for accommodating appropriately-scaled urban and non-agricultural rural uses, such as recreational uses, and the siting of agricultural support activities and buffering agricultural and conservation district lands from urban land uses. With less than 0.25 per cent of all lands in the State classified in the rural land use district, the rural district is an underutilized tool in the statewide land use management system. Accordingly, there is a need to strengthen policy guidance for the establishment of land use patterns that preserve the State's rural heritage and rural and agricultural land resources, while allowing greater flexibility for rural development and rural economic opportunities.

The purposes of this Act are to:

(1) Provide a one-time process by which agricultural lands that have already been subdivided and developed for non-agricultural uses may be reclassified to the rural land use district; and

(2) Provide policy guidance for county land use and planning policies, standards, and development practices that are specifically designed to promote rural land use and character.

This Act would expand the rural district land base, promote county rural land use planning and management, and allow the State to focus its agricultural policies and programs on those lands identified as having significant resource value to the State's agricultural sector.

PART I

SECTION 2. Section 205-2, Hawaii Revised Statutes, is amended as follows:

1. By amending subsection (a) to read:

"(a) There shall be four major land use districts in which all lands in the State shall be placed: urban, rural, agricultural, and conservation. The land use commission shall group contiguous land areas suitable for inclusion in one of these four major districts. The commission shall set standards for determining the boundaries of each district[,]; provided that:

(1) In the establishment of boundaries of urban districts, those lands that are now in urban use and a sufficient reserve area for foreseeable urban growth shall be included;

(2) In the establishment of boundaries for rural districts, areas of land composed primarily of small farms [mixed] and open space with [very] low density residential [lots, which may be shown by a minimum density of not more than one house per one-half acre and a minimum lot size of not less than one-half acre shall be included, except as herein provided;] uses and rural centers shall be included as provided in this chapter;

(3) In the establishment of the boundaries of agricultural districts, the greatest possible protection shall be given to those lands with a high actual or potential capacity for [intensive] productive cultivation[;], to include those lands designated as important agricultural lands to the State; and

(4) In the establishment of the boundaries of conservation districts, the "forest and water reserve zones" provided in Act 234, section 2, Session Laws of Hawaii 1957, are renamed "conservation districts" and, effective as of July 11, 1961, the boundaries of the forest and water reserve zones theretofore established pursuant to Act 234, section 2, Session Laws of Hawaii 1957, shall constitute the boundaries of the conservation districts; provided that thereafter the power to determine the boundaries of the conservation districts shall be in the commission.

In establishing the boundaries of the districts in each county, the commission shall give consideration to the master plan or general plan of the county."

2. By amending subsections (c) and (d) to read:

"[(c) Rural districts shall include activities or uses as characterized by low density residential lots of not more than one dwelling house per one-half acre, except as provided by county ordinance pursuant to section 46-4(c), in areas where "city-like" concentration of people, structures, streets, and urban level of services are absent, and where small farms are intermixed with low density residential lots except that within a subdivision, as defined in section 484-1, the commission for good cause may allow one lot of less than one-half acre, but not less than 18,500 square feet, or an equivalent residential density, within a rural subdivision and permit the construction of one dwelling on such lot, provided that all other dwellings in the subdivision shall have a minimum lot size of one-half acre or 21,780 square feet. Such petition for variance may be processed under the special permit procedure. These districts may include contiguous areas which are not suited to low density residential lots or small farms by reason of topography, soils, and other related characteristics.]

(c) The purpose of the rural district is to protect and enhance the character and economies of rural communities. The rural district shall be used to:

(1) Site agricultural support activities, other natural resource-based activities, and low-intensity nonagricultural uses;

(2) Buffer and protect agricultural land and resources from nonagricultural uses for present and future cultivation;

(3) Maintain the integrity of open space and scenic vistas of rural landscapes; and

(4) Protect natural resources within the rural district.

Areas in the rural district shall be characterized by a regional land use pattern of predominantly open landscapes of farmland and contiguous open space and natural areas with small, mixed-use rural towns or rural service centers interspersed in the physical landscape. The rural district may include contiguous areas that are not suited to physical development because of topography, soils, unique conservation values, or other related characteristics.

Physical development in the rural district shall be of small scale and low density, with a level of physical infrastructure and services substantially lower than in urban areas, except where higher densities are allowed within the limits of rural centers. A rural center shall be physically compact with a well-defined edge, characterized by a core area having a mix of residential uses, public and commercial services, and economic activities primarily serving residents within the center and adjacent rural and agricultural areas. Physical development within rural centers shall be compatible with the scale, historic character, and physical form of existing rural centers and surrounding rural landscapes. Development outside of designated rural centers should be clustered to maximize the preservation of open space and to minimize the cost of physical infrastructure and alteration to the natural landscape.

Nonfarm uses and new rural development shall be directed as far as practicable to existing or designated rural centers. Development that would result in strip development along roads or result in uniform subdivision and development of parcels shall be discouraged. Rural district areas shall also serve to spatially separate urban settlements from agricultural or natural landscapes to protect these resources and to mitigate land use conflicts and nuisances.

Agriculture shall be a principal permitted use in the rural district. Rural districts may include other activities or uses as defined by ordinances or rules adopted by each county, pursuant to section 205-5.

(d) Agricultural districts shall include [activities]:

(1) Activities or uses as characterized by the actual or potential cultivation of crops, orchards, forage, and forestry; [farming]

(2) Farming activities or uses related to animal husbandry, aquaculture, and game and fish propagation; aquaculture, which means the production of aquatic plant and animal life for food and fiber within ponds and other bodies of water; [wind]

(3) Wind generated energy production, including wind farms, for public, private, and commercial use; [bona fide]

(4) Bona fide agricultural services and uses which support the agricultural activities of the fee or leasehold owner of the property and accessory to any of the above activities, [whether or not conducted on the same premises as the agricultural activities to which they are accessory,] including but not limited to farm dwellings as defined in section 205-4.5(a)(4), employee housing, farm buildings, mills, storage facilities, processing facilities, vehicle and equipment storage areas, and roadside stands for the sale of products grown on the premises; [wind machines and wind farms; small-scale]

(5) Small-scale meteorological, air quality, noise, and other scientific and environmental data collection and monitoring facilities occupying less than one-half acre of land[,]; provided that [such] the facilities shall not be used as or equipped for use as living quarters or dwellings; [agricultural]

(6) Agricultural parks; and [open]

(7) Open area recreational facilities, including golf courses and golf driving ranges; provided that they are not located [within] on agricultural district lands with soil classified by the land study bureau's detailed land classification as overall (master) productivity rating class A or B[.] or that are designated as important agricultural lands to the State.

These districts may include areas [which] that are not currently used for, or [which] that are not currently suited to, agricultural and ancillary activities by reason of topography, soils, and other related characteristics."

SECTION 3. Section 205-5, Hawaii Revised Statutes, is amended to read as follows:

"205-5 Zoning. (a) Except as [herein] provided[,] in this section, the powers granted to counties under section 46-4 shall govern the zoning within the districts, other than in conservation districts. Conservation districts shall be governed by the department of land and natural resources pursuant to chapter 183C.

(b) Within agricultural districts, uses compatible to the activities described in section 205-2 as determined by the commission shall be permitted; provided that accessory agricultural uses and services described in sections 205-2 and 205-4.5 may be further defined by each county by zoning ordinance. Other uses may be allowed by special permits issued pursuant to this chapter. The minimum lot size in agricultural districts shall be determined by each county by zoning ordinance, subdivision ordinance, or other lawful means; provided that the minimum lot size for any agricultural use shall not be less than one acre, except as provided herein. If the county finds that unreasonable economic hardship to the owner or lessee of land cannot otherwise be prevented or where land utilization is improved, the county may allow lot sizes of less than the minimum lot size as specified by law for lots created by a consolidation of existing lots within an agricultural district and the resubdivision thereof; provided that the consolidation and resubdivision do not result in an increase in the number of lots over the number existing prior to consolidation; and provided further that in no event shall a lot, which is equal to or exceeds the minimum lot size of one acre be less than that minimum after the consolidation and resubdivision action. The county may also allow lot sizes of less than the minimum lot size as specified by law for lots created or used for public, private, and quasi-public utility purposes, and for lots resulting from the subdivision of abandoned roadways and railroad easements.

[(c) Unless authorized by special permit issued pursuant to this chapter, only the following uses shall be permitted within rural districts:

(1) Low density residential uses;

(2) Agricultural uses; and

(3) Public, quasi-public, and public utility facilities.

In addition, the minimum lot size for any low density residential use shall be one-half acre and there shall be but one dwelling house per one-half acre, except as provided for in section 205-2.]

(c) Each county shall adopt ordinances and rules for the rural district that define allowable uses, standards for physical development, infrastructure, and rural service levels, and rural design guidelines as needed, to govern land use and development in rural service centers and the rural district as a whole. The adopted ordinances and rules shall be consistent with and implement the policies and standards for the rural district contained in this chapter; provided that exclusive agricultural use shall be a primary permissible use in the rural district. Uses within the rural district shall be restricted to activities or uses whose scale and impact do not alter the character of rural areas. Uses may include agriculture, animal husbandry, aquaculture or game propagation, agricultural support services, agricultural processing, residential uses, cottage or craft industries, nonagricultural businesses and establishments providing goods and services compatible with rural character and scale, outdoor recreational facilities including golf courses, forestry, public and quasi-public utilities, and passive open space.

The minimum lot size in rural districts shall be determined by each county by zoning ordinance, subdivision ordinance, or other lawful means; provided that only one dwelling unit shall be permitted per lot of record, except as provided by county ordinance pursuant to section 46-4(c), and the dwelling unit density in the rural district shall not exceed one dwelling unit per one-half acre of gross parcel area. Smaller lot sizes may be allowed on a parcel only if residential uses and any other uses are clustered and open space is preserved, as permitted under an open space preservation subdivision ordinance adopted by the county.

(d) Each county shall manage and guide land use and development in the rural and agricultural districts to achieve the following objectives:

(1) Long-term preservation of open space for agriculture, forestry, ranching, and rural landscapes;

(2) Effective buffering of rural and agricultural areas from urban uses and avoidance of nuisance conflicts between rural, agricultural, and urban uses and activities;

(3) Avoidance of the fragmentation, alienation, or reduced productivity of agricultural areas;

(4) Location of nonfarm uses in compact, mixed-use rural centers, where higher densities shall be allowed;

(5) Development that is compatible with the visual character of agricultural and rural areas, and the retention of rural landscape features, with respect to size, scale, lot coverage, materials used, natural vegetation, physical infrastructure, and architectural, historic, or cultural features;

(6) Minimal site alteration and disturbance that does not impair natural ecological processes, avoids disturbance or fragmentation of intact habitats, and protects important natural features and land forms, including scenic vistas, steep slopes and ridges, hazard zones, streams, wildlife habitats, or wetlands;

(7) Effective and appropriately scaled on-site water and wastewater systems that do not impair water quality or public health where development is not served by public water and sewer systems; and

(8) Infrastructure and physical improvements that are appropriate to rural and agricultural uses and do not create demand for urban infrastructure and services."

SECTION 4. Section 205-6, Hawaii Revised Statutes, is amended by amending subsections (a) through (e) to read as follows:

"(a) [The] Subject to this section, the county planning commission may [permit certain unusual and reasonable] allow by special permit uses within the agricultural [and rural districts] district other than those [for which the district is classified.] explicitly provided for in sections 205-2(d) and 205-4.5. Any person who desires to use the person's land within an agricultural [or rural] district other than for an agricultural [or rural use, as the case may be,] use may petition the planning commission of the county within which the person's land is located for permission to use the person's land in the manner desired[.]; provided that the following conditions apply:

(1) The proposed use is consistent with the purpose, character, and performance standards established for the agricultural district pursuant to this chapter;

(2) The proposed use is dependent upon specific natural resources found on the property of the subject petition, or there is an overriding public benefit for the proposed use at the particular location and alternative site capacity for the particular use does not exist;

(3) The proposed use is consistent with and implements the land use policies and patterns in the adopted county general plan and community or development plans;

(4) The proposed use would not adversely affect surrounding properties or environment; and

(5) The proposed use would not unduly burden public agencies to provide infrastructure or services.

A petition for a proposed use that would, in effect, permanently displace agricultural use of the property as a result of permanent structures or improvements, or that is part of a larger development, shall be submitted to the land use commission, prior to acceptance for county processing, for a determination as to whether the petition shall be subject to a district boundary amendment pursuant to sections 205-3.1 or 205-4. Neither golf courses nor visitor accommodations greater than five units shall be permitted by special permit under this section.

Each county may establish the appropriate fee for processing the special permit petition. Copies of the special permit petition shall be forwarded to the land use commission, the office of planning, the department of agriculture, and the office of environmental quality control for publication in its periodic bulletin.

(b) The planning commission, upon consultation with the central coordinating agency, except in counties where the planning commission is advisory only in which case the central coordinating agency, shall establish by rule [or regulation], the time within which the hearing and action on petition for special permit shall occur. The county planning commission shall notify the land use commission, the office of planning, the department of agriculture, and [such] any persons and agencies that may have an interest in the subject matter of the time and place of the hearing.

(c) The county planning commission may under such protective restrictions as may be deemed necessary, permit the desired use, but only when the use meets the conditions under subsection (a) and the use would promote the effectiveness and objectives of this chapter. A decision in favor of the applicant shall require [a majority] an affirmative vote by two-thirds of the total membership of the county planning commission.

(d) Special permits for land the area of which is greater than fifteen acres or for lands delineated as important agricultural lands shall be subject to approval by the land use commission. The land use commission may impose additional restrictions as may be necessary or appropriate in granting [such] the approval, including the adherence to representations made by the applicant.

(e) A copy of the decision together with the complete record of the proceeding before the county planning commission on all special permit requests involving a land area greater than fifteen acres or for lands delineated as important agricultural lands shall be transmitted to the land use commission within sixty days after the decision is rendered. Within forty-five days after receipt of the complete record from the county planning commission, the land use commission shall act to approve, approve with modification, or deny the petition. A denial either by the county planning commission or by the land use commission, or a modification by the land use commission, as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure."

PART II

SECTION 5. (a) The office of planning shall prepare maps, in consultation with the county planning departments, displaying proposed new agricultural and rural district boundaries. The office shall develop criteria for this purpose; provided that primary consideration shall be given to the reclassification of those lands that are already subdivided and are developed for non-agricultural uses, including lots created by subdivisions approved prior to June 4, 1976.

(b) The office of planning shall work with the county planning departments in the identification of potential areas for reclassification and in the preparation of the new agricultural and rural district classification maps for each county. The office may also consult with other affected state, county, and federal agencies and other private and community stakeholders in this process. The district boundary amendments proposed under this section shall be exempt from the provisions of sections 6E-2, 6E-8, and 6E-42, Hawaii Revised Statutes.

(c) The office of planning shall submit the proposed agricultural and rural district classification maps to the land use commission with a report documenting the criteria used and the rationale for the proposed district boundaries, the process used in developing proposed district boundaries, the stakeholders involved in the process, and the comments and concerns raised during the process.

(d) The commission shall hold at least one public hearing in accordance with chapter 92, Hawaii Revised Statutes, in each county prior to the final adoption by the commission of the new agricultural and rural district boundaries for that county. Notice of the time and place of the meeting shall be published in accordance with chapter 92. The notice shall indicate the time and place that the maps showing the proposed district boundaries within the county may be inspected prior to the meeting. Any person wishing to file written recommendations or comments with the commission shall file the materials within fifteen days of the meeting.

(e) The commission shall approve, disapprove, or approve with modifications the district boundaries. The new district boundaries shall be approved by two-thirds of the membership to which the land use commission is entitled. The district boundaries shall be adopted in final form on or before December 31, 2005; provided that at the time of adoption, the land use commission shall also adopt a report or findings documenting the basis for the approved district boundaries, including the basis for any modifications to the recommended boundaries made by the commission.

(f) When adopting the new agricultural and rural district boundaries pursuant to this section, the commission shall specifically consider the following:

(1) The extent to which the proposed reclassification protects important agricultural lands to the State;

(2) The extent to which the proposed reclassification conforms to county general and development plans;

(3) The impact of the proposed reclassification on state funds and resources and the capacity of the State and county to provide public infrastructure and services to affected areas; and

(4) The potential impact of the proposed reclassification on significant conservation, historic, archaeological, or cultural resources.

(g) Any interested person may petition the commission for a declaratory ruling under the rules established by the commission. The petition shall be filed within forty-five days of the effective date of the adoption of the district boundaries. Notwithstanding any other law to the contrary, the commission shall conduct a hearing on the petition. The district boundaries and classification of parcels not subject to a petition for declaratory ruling shall remain in full force and effect. The commission's final action on a petition filed under this subsection shall be subject to judicial review pursuant to section 91-14, Hawaii Revised Statutes.

(h) All district boundary amendments other than those processed pursuant to this section shall be subject to the district boundary amendment processes provided in sections 205-3.1 and 205-4, Hawaii Revised Statutes.

(i) Any state or county approval of projects involving a permit, license, certificate, land use change, subdivision, or other entitlement for use, on lands which are reclassified by the commission pursuant to this section, shall be subject to sections 6E-8 and 6E-42 and chapter 205, Hawaii Revised Statutes, as amended.

(j) For any proposed project involving lands reclassified by the commission pursuant to this section, the applicable State or county agency or officer shall advise the department of land and natural resources of any application involving a permit, license, certificate, land use change, subdivision, or other entitlement for use of such lands, which may affect threatened or endangered species and their associated ecosystems. The agency or officer shall allow the department of land and natural resources an opportunity for review and comment on the effect of the proposed project on threatened or endangered species and their associated ecosystems prior to any approval.

SECTION 6. All boundary amendment petitions filed with and accepted by the land use commission or the appropriate county land use decision-making authority and all state land use special permit petitions filed with and accepted by the county planning commission before April 1, 2004, shall not be subject to the provisions of this Act.

Applications for county general plan and community or development plan amendments, zone changes, subdivision applications, and development approvals involving lands in the agricultural land use district filed with and accepted by the appropriate county land use decision-making authority before April 1, 2004, shall not be subject to the provisions of this Act.

SECTION 7. There is appropriated out of the general revenues of the State of Hawaii the sum of $50,000 or so much thereof as may be necessary for fiscal year 2004-2005 to carry out the purposes of this Act.

The sum appropriated shall be expended by the office of planning for the purposes of this Act.

PART III

SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 9. This Act shall take effect on July 1, 2010.